Logo of Phnom Penh Post newspaper Phnom Penh Post - Comment: Plenty of rights, but how now to use them?

Comment: Plenty of rights, but how now to use them?

Comment: Plenty of rights, but how now to use them?

In his second article about "Freedom versus Responsibility", Hassan

AbuKasem (right) argues that the Cambodian government is indeed committed to democracy

and attendant rights - and not to a status quo of the 80s. But it is laboring under

difficulties that necessarily make this a slow learning curve.

THE core of my article in the Phnom Penh Post's December 1-14, 1995 issue dealt

with the interpretation of rights and freedoms, and the responsibility of rightful

citizens - the ruling and the ruled alike - in excercising their "individual"

rights and freedoms.

Attention should be focused on how "individual rights and freedoms" are

interpreteted and excercised in Cambodia, not what form of government that came into

existence prior to or after the 1993 UN-sponsored elections.

Before discussing the issues concerning my article that were brought up and refuted

by Basil Fernando in his piece, "Being Free and Responsible under the 'Power

and the Gun'" (Phnom Penh Post, December 15-28, 1995), allow me to set the record

straight to avoid further misunderstanding.

In my article I did not write or state that the "civil adminstration" in

Cambodia is based primarily on UNTAC's precepts or Western concepts, as Fernando

contended in his interrogative clause, "What is this civil administration that

is based on UNTAC's precepts or Western concepts?" What I wrote and stated was:

"...from the administration of civil and criminal justice to the application

of electoral law."

From a legal standpoint, the process involves different expertise and methodology.

The administration or the act of administering civil and criminal justice in my article

refers specifically to the process or performance by which fair treatment or justice

(for the accusers and the accused) is rendered through judicial deliberations.

Generically, civil administration, though the court system is an integral part of

it, is in simple terms referred to as the bureaucracy under a central authority,

which provides and maintains basic and essential services (e.g. pure drinking water,

mail delivery, birth/death/marriage certificates, etc.) to the general public, as

opposed to military and religious establishments.

The form of government or civil administration in Cambodia (one may call or compare

it to whatever one is pleased with) is not what I intended to say in my previous

article. Therefore, I will not deal with the nature of the present government - an

outcome of the formula fervently endorsed by the international community and defectively

implemented by UNTAC.

A fine of $5,000 on Prince Chakrapong was imposed because he is a prince. Other culprits

have gone unpunished.

I should also draw to readers' attention the fact that during the days of the multinational

peacekeeping mission in Cambodia, the Cambodians had not only seen and met with sensible

men, but also convicted felons and mercenaries.

At issue are some of Fernando's inaccurate assertions that " ...in Cambodia

the political will was concentrated in preserving the system that came to be in the

eighties," and that "the civil administration remains as it was for better

or worse."

Civil administration, as I pointed out earlier, was not my focal point, and it should

not be an issue, because it has not changed its form, shape or size to a significant

degree. Indeed, it remains, for the most part, what it was.

Provincial and municipal courts, police departments, post office, public works, public

schools, etc. that were created in the 1980s still exist today. Services at all these

government institutions may still be the same, and not be measured up to one's expectation

and to international standard, but improvements, however slight and lagging, have

been noted in many areas.

What would be thought to be unlikely or impossible in the 1980s is now a reality.

Take for instance, a suspect alleged to have committed a petty theft, or charged

with committing a crime, would probably not have had a hearing in the 1980s.

This, perhaps, was because the Cambodian leaders of the 1980s had training in different

camps and never came in contact with the Western world.

Today, repeat offenders, recidivists, etc. may have a good chance of getting a trial

and being represented by locally or European-trained defense attorneys to ensure

that their "fundamental" rights are protected.

When a muderer was incarcerated, say, for more than 72 hours without a hearing or

indictment, human rights activists would protest that the government violated his

rights as a human being. To sooth the world's outcry, the government had no choice

but set him free with or without bail.

The apparent changes in the Cambodian legal system or judicial practice, such as

granting a defendant the right to a counsel or an appeal - an inherent part of human

rights protection, were initially attributed to UNTAC and other UN funded human rights

organizations that laid the ground rules to promote and enhance human rights practices.

UNTAC's legacy has been acknowledged to this day, at least in the area of legal practice.

Cambodian legal practitioners, both State prosecutors and defense lawyers, and law

enforcement officers, continue to get trainings and participate in seminars periodically

organized by French and American legal experts. Legal manuals and instructional materials

are based, for better or for worse, largely on Western (or democratic) concepts.

The criminal justice system is now re-examined and modified.

The French and the Americans teach and train Cambodian lawyers how to prepare a case

in court, ranging from investigative methods to rules of presenting evidence (at

a hearing or trial) to sentencing, based on what is called "due process of law."

The French and the Americans have not, and probably will not, teach and train Cambodian

lawyers to employ in court the same Cambodian legal principles and standards they

already learned, which have often been challenged by the West as being unfair or

a travesty of justice.

The electoral law, I think, one of UNTAC's "disgraceful" pieces of legislation,

has become a controversial document.

Chapter 10 (Constitution of Assembly), Article 78, sub-article (2) stated: "If

any member declared as duly elected pursuant to article 80, sub-article (1), paragraph

(b) dies or resigns or otherwise becomes unable to serve as a member during the term

of the Assembly, the candidate whose name appears on the list of candidates on which

the name of the member appeared next after the last of the party's candidate duly

elected from that list shall be declared duly elected."

Legal experts who wrote the electoral law for UNTAC failed to define the phrase "otherwise

becomes unable to serve" with a more succinct and definite language.

This poses a question as to what circumstance, other than death or resignation, a

member of the Assembly "becomes unable to serve" during his term. Would

expulsion based on insubordination and constructive criticism of the party be permitted?

On the basis of this law, the government may claim it is legal to expel or remove

any duly elected members of parliament from their seats, and MPs can counterclaim

it is illegal for the government to expel them.

The government and MP Sam Rainsy are at odds as ever over the right to set up or

shut down a political party, or the Khmer Nation Party for that matter. Both sides

have frequently based their arguments for and against the party on UNTAC's electoral

law, which in my view is no longer valid in Cambodia.

So far, the political will in Cambodia has not been "concentrated" in preserving

the system that came to be in the eighties, as contended by Fernando. The government's

will is to promote a democratic form of governance in Cambodia.

Government leaders, in word and in deed, have tried to get to that end.

In his speech on the Human Rights Observance Day on December 13, 1995, Samdech Chea

Sim, chairman of the National Assembly, said " ...both the National Assembly

and the Royal Government have closely cooperated in the democratization of our society,

in the assurance of rights and freedoms for the people ...what we need is freedom

and a genuine respect for human rights, reinforced by an appropriate sense of responsibility,

morality and dignity toward the society and humanity."

However, democracy and respect for human rights in their best forms, as Fernando

and I might have expected, may not happen soon given the circumstances. On the road

to democracy, one would have to anticipate some obstacles, resistance and even some

loss of lives.

The leadership in Cambodia comprises mostly of holdovers and party loyalists who

strictly follow their party lines, and, thus, are always sensitive to ideas that

may affect their status.

The government at times has exercised heavy-handed measures to silence its opponents,

which can never be justified.

But what happens in Cambodia is not quite unique in political sense, and it should

not be singled out for criticism. The Tiannamen Square massacre in China, the suppression

of press freedom in Singapore, the human rights abuses in Indonesia's East Timor,

the police brutalities in a Vietnamese refugee camp in Hong Kong, the Branch Davidian

incident in Waco, Texas, the Ruby Ridge killing in Idaho, the imprisonment of a newspaper

editor in Vietnam, and so on, all have similar impacts in terms of violation on human

rights. In addition, the death penalty is still legally carried out in many parts

of the world, but it is constitutionally forbidden in Cambodia.

Press freedom has been allowed to flourish in Cambodia because the freedom of speech

for citizens is guaranteed in the Constitution.

Ten years ago, there was only one newspaper, "Pracheachun" or "People's

Newspaper," which was the mouthpiece of the government before the 1993 election.

Now there are plenty of Khmer and foreign language newspapers, magazines, fiction

and non-fiction books, and many of them contain sexually-appealling pictures and

drawings, which are not really suitable to young readers. Ten and twelve-year old

children sell X-rated videotapes all over the city.

What is not permitted or is hard to find in the West is available in Cambodia with

a much lower price. Here, again, I should emphasize that "individual rights

and freedoms" in Cambodia are not scarce, but they are not exercised in a responsible

and ethical manner by those who advocated and cherished them.

A Khmer language newspaper editor started off his day with the phrase "m*****

f*****" in his column, apologetically saying he must express his feeling that

way so he can breathe a sigh of relief.

Some others use abusive language to attack the current leaders and the way they run

the country.

If Fernando reads the Khmer-language newspapers everyday, as I do, he will find what

I said in my article.

The use of obscene language in a newspaper, whether explicitly or implicitly, has

no place in professional journalism. Journalists, as messengers for the public, should

focus on issues or policies of national interest, which have been adopted and implemented

by the government.

There are better styles for writing on government practices than just filling the

columns with derogatory terms that may well galvanize people into violence and hostility.

In addition, journalists should not forget that government officials are human beings

just as they are. When they are constantly driven to the edge with insults, naturally

they will get emotional and, sometimes, resort to retaliation.

To avoid confrontation, the Cambodians must equally learn to exercise their rights

and freedoms morally, scrupulously and responsibly.

Being ethnically a member of a minority group, the Cham, I wish to demand all the

rights and freedoms to which a human being is entitled, but I feel that I only need

cetain rights and freedoms, whether I am in Cambodia or in the U.S.

When there is an "absence of trust and confidence of the people in the system,"

people in the civilised world criticise their leaders, be it through newspapers or

airwaves, in an issue-oriented manner, with decent language, not with invectives.

They will decide the fate of their leaders at the poll.

Rights, freedoms and responsibilities are correlative. They must be defined, or rather

expressed and undertaken, within the concept of mutual respect, courtesy and non-violence

if peace and gradual changes are to be maintained.

In Cambodia, if rights, freedoms and responsibilities are defined to the broadest

sense of the words just because citizens are sick and tired of the government, one

choice would be that they take up arms and declare war againt it.

The final result is that an end to continued bloodshed will nowhere be in sight.

And this is a tragic mistake for the people of right minds.

Footnote: The Municipal Court in Phnom Penh ruled against the editor of the

Cambodian-language newspaper, Serei Pheap Thmei (New Liberty News), based on article

62 of UNTAC's Criminal Code. With a guilty verdict, the editor could be sentenced

to three years in prison or fined $1,200 for each count of false information published

in the newspaper.

Hassan AbuKasem, a native of Cambodia, is executive director of Cambodia

Development International, a non-profit organization, in Washington, D.C. He has

visited Cambodia seven times prior to, during and after the 1993 elections.


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